Adams v. Beadle & Slee

Roturock, ,T. 1. mortgage. The single question presented is whether the nursery stock iri controversy passed to the plaintiff by chattel the mortgage, or to the appellants under their real estate mortgage foreclosure and sale. It will be observed that appellants purchased the premises at the sale in satisfaction of their mortgage, and the land exclusive of the nursery stock is of greatly less value than the claim of appellants. Under these circumstances, if plaintiff should be permitted to remove the nursery stock appellants would be without remedy as against Owen. They are bound by their purchase at the sale. If this controversy were between Owen and the appellants, or between appellants and a subsequent purchaser of the land from Owen, the question would not be an open one in this State. In Price v. Brayton, 19 Iowa, 309, it was held that nursery trees planted by the owner of real estate became a part of the realty and passed as such to a purchaser in the foreclosure of a mortgage executed by such owner. Counsel for appellee insists that the case at bar is distinguishable from the case just cited, because in that case “the question was between the assignee of the land under the mortgage and the mortgagee after he had purchased the land at execution sale,” and “ there had been no severance of the nursery stock, actual or constructive.” It may be conceded that appellants have no right to follow and reclaim nursery stock which has been sold and delivered to customers. Indeed, we apprehend it was the right of Owen to sell, at the proper season, in the ordinary course of trade, such of the stock as was suitable for transplanting. But that presents an entirely different question from a sale of the entire [441] stock, without actual severance, and without regard to its being in proper condition for transplanting. There can he no doubt that if the chattel mortgage had not been made Owen could not claim the rights now claimed by plaintiff. If he had no right as against the mortgagee, he could confer no right upon another. It is urged that the chattel mortgage was recorded prior to the sale to appellants, and that they had constructive notice thereof. Between Owen and appellants the nursery stock was a fixture held by the mortgage. It was, as between mortgagor and mortgagee, just as much a part of the realty as a house or barn upon the premises, and appellants can no more be regarded as purchasers with notice than they could be charged with notice of a recorded chattel mortgage upon the house or barn, executed subsequent to their mortgage. That the rights between mortgagor and mortgagee as to fixtures are the same as between heir and executor and grantor and grantee is well settled. Price v. Brayton, supra; 2 Kent’s Com., 345, 346; Snedeker v. Warring, 12 N. Y., 170; Hilliard on Mortgages, 294. A very different rule obtains as between landlord and tenant. In our opinion the demurrer to the petition should have been overruled. Reversed.